Private International Law (Implementation of Agreements) Bill [HL]

Baroness Finlay of Llandaff Excerpts

Committee stage & Committee: 1st sitting (Hansard) & Committee: 1st sitting (Hansard): House of Lords
Wednesday 13th May 2020 Lords Chamber

Amendment 1 withdrawn.

[The Deputy Chairman of Committees (Baroness Finlay of Llandaff) (CB)]

We now come to the group beginning with Amendment 2. I remind noble Lords that anyone wishing to speak after the Minister should email the clerk during the debate. It would be helpful if anyone intending to say “Not content” when the Question is put made that clear in the debate. It takes unanimity to amend the Bill in this Committee: this Committee cannot divide.

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[Lord Morris of Aberavon (Lab)]

My Lords, I am indebted to the noble Lord, Lord Rowlands, for drawing my attention to the impressive eighth report of the Delegated Powers and Regulatory Reform Committee, of which he is a member, and the Minister’s reply.

Any expertise I acquired in the course of my academic education in Cambridge has, I fear, slipped away. I am glad that, as a law officer, I was not particularly troubled by questions of private international law, in stark contrast to public international issues such as advising on Kosovo, Iraq, Sierra Leone, the United Nations and elsewhere. My remarks are addressed to Amendment 16 but equally apply to a lot of issues I would have raised on the stand part debate, and therefore I may be excused from repeating them when we come to that issue as the same questions arise.

Having examined the evidence in the two documents, surely the preferred course is a matter of judgment. I leave on one side the hugely impressive technical arguments we have heard during this debate. The issue is this: does one depart from the practice of 100 years of the need for primary legislation to implement a treaty or does one bow to the urgency and the apparent narrow window to implement the application of the Lugano convention before the end of the transition period? Other examples have been cited, but I do not expect that they have the same urgency as that.

The noble Lord, Lord Anderson of Ipswich, mentioned the hearing of the Justice Sub-Committee, which I used to chair, in which some rather fundamental concerns were raised about Lugano in the course of the evidence, particularly regarding family matters.

The Minister believes that proceeding by statutory instrument is necessary to implement agreements in a timely manner. That is the issue he puts before us today. The question that concerns me is, while there might be a discrete argument for dealing with issues in the way proposed during the transition period, has it occurred to Her Majesty’s Government that it might be more acceptable to put forward a much narrower clause to deal with a specific mischief such as Lugano? I agree with the spirit of the remarks made by my noble and learned friend Lord Falconer.

It would be better if we had something much narrower to deal with the specific issue than the rather wide power that is now being granted to the Government. That certainly would have the attraction of being more proportionate. Failing that, my submission would be to delete Clause 2 altogether. That really would meet the harm that has been ventilated so ably in the course the debate.

[The Deputy Chairman of Committees]

I believe that the noble Lord, Lord Adonis, does not wish to contribute at this point. I therefore move on to the noble and learned Lord, Lord Mance.

[Lord Mance]

My Lords, as has been pointed out, these amendments illustrate the width of the delegated power proposed. They really matter only if Amendments 1, 4 and 5 fail and Clause 2 remains in the Bill unaltered. I basically agree with all my noble and learned friend Lord Falconer said and will add some comments on only some of the amendments.

On Amendment 10—replacing “includes” with “means”—Clauses 2(7) contains a quite exhaustive definition. “Includes” suggests that it is not exhaustive and that there are further things to be covered. To suggest that the definition is only partial in that way is a recipe for future doubt and argument.

Amendment 2 aims to rephrase the power

“so far as relating to private international law”

to read so far as

“that agreement exclusively relates to”

private international law. In his letter responding to the Delegated Powers Committee’s report, the noble and learned Lord, Lord Keen, pointed out that the Warsaw convention, governing the responsibility of international aviation carriers, and the CMR convention —he described it as the Geneva convention, but it is better known as the CMR convention—governing the liability of international road carriers each contain an individual provision relating to private international law. He went on to say that

“importantly, only those individual provisions could have been implemented under the clause 2 power in the Bill.”

That statement illustrates the reason for this amendment, because if that is how this Bill is or may be interpreted, it certainly needs amendment. It is wholly inappropriate to use this Bill to cherry pick a provision about jurisdiction, for example, or recognition of judgments out of a composite scheme, and to suggest that the Bill enables such a provision to be enacted without any context.

Take either convention. The jurisdiction provisions—who can be sued and where—make sense only in the light of the provisions regarding who can claim and who is liable. To require a consignor or consignee of goods, whether by air or by road, to sue in a particular country without incorporating the provisions that create the cause of action, and provide against whom the cause of action is, would be completely to misunderstand the scheme of such conventions. They are conceived as a composite package. Take the CMR convention—the acronym is French, but it deals with transport. The concept of a contract for the carriage of goods by road is fundamental to the operation of that convention, but it is an artificial one which may be satisfied by status and activities, such as taking over goods and the consignment note, rather than on ordinary contractual principles. If you incorporated the jurisdictional provisions, you would not incorporate the liability provisions—the two do not make sense separated.

The insertion of the words “exclusively relates to” in Clause 2(1) would ensure that it is only pure private international law agreement matters that can attract the use of the general delegated power, if that remains at all in Clause 2.

Turning to Amendment 3, I declare a potential interest as a practising arbitrator, in view of the definition in the Bill of private international law to include recognition and enforcement of an “arbitral award”.

[The Deputy Chairman of Committees]

My Lords, for information, Amendment 3 is in the next group of amendments. In this group we have Amendments 2, 6, 9, 10, 11, 12, 13 and 16. I hope that that is helpful.

[Lord Mance]

Yes, it is very helpful. Have I started addressing Amendment 3 by mistake? I certainly did not intend to. I want to address Amendment 11, which seeks to include the words “or arbitral award” in the definition of private international law.

As I said, I declare an interest as an arbitrator. Perhaps I might mention that, although I may not speak on this, I chair the Lord Chancellor’s Advisory Committee on Private International Law, which is referred to later, in proposed Amendment 20. I assure the Committee that that committee had nothing to do with that amendment.

To go back to arbitral awards, the recognition of arbitration clauses and the enforcement of arbitral awards are matters governed by special international agreements, most notably the highly successful 1958 New York convention and the 1966 International Centre for the Settlement of Investment Disputes convention, also known as the World Bank convention. The current Brussels regime, the Lugano convention, the Hague Convention on Choice of Court Agreements and the 2019 Hague Convention are all extremely careful to exclude arbitration expressly. But this definition for some reason includes it. One of the virtues of the 2012 recast of Brussels 1 was to reinforce that exclusion still further. London is a world centre of arbitration, and there would be concern about any suggested intervention by delegated legislation.

The inclusion of a reference to an “arbitral award” is therefore inappropriate and will arouse concern. It will also raise the further question: if arbitral awards are within private international law, what about international agreements on the jurisdiction of arbitrators? Is the word “jurisdiction” in Clause 2(7)(a) to be interpreted as enabling delegated legislation about arbitral jurisdiction?

The response at Second Reading from the noble and learned Lord, Lord Keen, was not comforting. He said:

“We do not intend to intrude wholesale on the New York convention or other aspects of arbitration, but it might be that there will be bilateral or multilateral … issues where a party wishes to refer to arbitration … we will want to have the power to proceed with such an agreement.”—[Official Report, 17/3/20; col. 1451.]


On the face of it, that suggests that, so far as the Government have any clear conception of why these words are there, they would cover jurisdictional issues—in other words, issues about where a party wishes to refer to arbitration and not just the recognition and enforcement of arbitral awards. That is an unwise and unnecessary indication of possible future interference by international agreement and delegated legislation in one of this country’s more successful export activities.

Surely the better approach is: if it ain’t broke, don’t fix it. If, at the international level, the New York or ICSID convention is supplemented, their domestic implementation should be by primary legislation, as it currently is under the Arbitration Act 1996 and the Arbitration (International Investment Disputes) Act 1966.

Finally, on Amendment 16, I endorse what has been said by my noble friend Lord Anderson and the noble and learned Lord, Lord Falconer. Admirable though they may be, model laws do not have the same status as international agreements and frequently need close attention before domestic implementation.

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[Lord Keen of Elie]

My Lords, the noble Lord, Lord Adonis, has made a number of extremely telling and important points. We are clearly in a situation where we must ensure either that we have an entirely reliable voting system in the upper Chamber, or alternatively a clear and telling government majority. I suspect that it is more likely that we will seek to secure the former.

[The Deputy Chairman of Committees (Baroness Finlay of Llandaff) (CB)]

My Lords, I shall now put the question that Clause 2 stand part of the Bill; all microphones will be opened until I give the result. As many as are of that opinion shall say “Content”.

[Noble Lords]

Content.

[The Deputy Chairman of Committees]

To the contrary, “Not content”.

[Noble Lords]

Not content.

[The Deputy Chairman of Committees]

My Lords, it takes unanimity to amend the Bill. If a single voice says “Content”, the clause stands part. The Contents have it.

Clause 2 agreed.

[Baroness Scott of Bybrook (Con)]

My Lords, this may be a convenient moment for the Virtual Committee to adjourn.

[The Deputy Chairman of Committees]

My Lords, the Virtual Committee stands adjourned.